Ad-Durur Al-Bahiyah fi Masaa’il Al-Fiqhiyyah – The Book of Marriage (Part 2)

It is also forbidden to betroth upon another’s betrothal.[1] It is permissible to look at the betrothed woman.[2] No marriage is valid without a guardian and two witnesses[3] unless the guardian is intending to prevent the woman from marriage[4] or is non-Muslim. It is permissible for each husband and wife to authorize someone to contract the marriage even if it were one.[5]

Section: The marriage of Mut’ah (i.e. marriage for limited period of time) is abrogated.[6]

Tahleel (means to marry a divorced woman temporarily with the intention of making her remarriage to her former husband lawful) is forbidden[7].  Shighar (means that a man gives his daughter or sister in marriage on condition that the other gives his daughter or sister to him in marriage without any dowry being paid by either) is forbidden as well.

The husband must fulfil the stipulations of the women[8], as long as such fulfilment does not legalize a prohibition or prohibit a legal thing.[9]

Chapter 1: The prohibited marriages

Man is prohibited from:

  • Marrying an adulteress or a pagan woman and vice versa[10]
  • Marrying anyone whom the Qur’an has forbidden[11]
  • Marrying relatives via fosterage[12]
  • Combining between woman and her paternal aunt or maternal aunt[13]
  • Marrying women more than the legalized number (4 wives) for slave and non-slave (i.e. who is free) [14]

The marriage of the slave without the permission of his master is invalid[15]; if a bondmaid was emancipated she becomes the master of herself and she has full right to choose a husband.[16]

 Chapter 2: Imperfections and the rules of non-Muslim marriages

It is permissible to revoke a marriage if any imperfection is discovered.[17] Anything related to marriage from disbelievers who have embraced Islam can only be approved when it is in accordance to the law of Islam.

If either of the two embraces Islam marriage is revoked and Iddah (waiting period) for the woman becomes a must.[18] Yet if both embrace Islam and the woman did not remarry both remain in the first marriage if they choose to do so, even if it was a long period of separation.[19]

References:

[1] Sahih: The hadeeth of Ibn ‘Umar (may Allaah be pleased with him) which states that the Prophet (ﷺ) said: “No man should offer a proposal of marriage over the proposal of his brother until the first one gives up or gives him permission.” Recorded by al-Bukhari, 4746.

[2] Sahih: From Jabir ibn ‘Abd-Allaah: “The Messenger of Allaah (ﷺ) said: ‘If one of you proposes marriage to a woman, if he can look at her to see that which will encourage him to go ahead and marry her, then let him do so.’ I proposed marriage to a young woman, and I used to hide where I could see her, until I saw that which encouraged me to go ahead and marry her, so I did so.’” According to another report he said, ‘a young woman of Bani Salamah. I used to hide from her, until I saw that which encouraged me to go ahead and marry her, so I did so.” (Recorded by Abu Dawud. Graded Sahih by sheikh albani in Sahih Abi Dawud, no. 1832, 1834)

[3] Sahih: The Prophet (ﷺ) said: “There is no marriage without a guardian and two just witnesses.” Recorded by Daraqutni. Graded Sahih by sheikh albani in Irwaa al-Ghaleel no. 1839.

[4] Sahih: If the guardian prevents a previously married woman or a virgin in his custody from marraige and the man qualified then it is the ruler or the judge who must act as her guardian and marry her to that man. For the Prophet (ﷺ) said: “If they quarrel, the ruler becomes the guardian of that who has no guardian.” Recorded by Abu Dawud. Graded Sahih by sheikh albani in Irwaa al-Ghaleel no. 1840.

[5] Sahih: It is permissible to authorize one individual for the parties of the contract and it is enough to day – “I have married so and so to so and so”, for the Prophet (ﷺ) said to a man, “Do you agree upon marrying so and so? He said, “Yes, then he asked the woman, “Do you agree upon marrying so and so? She said: “Yes, he had then married her and the man cohabited with her.” Recorded by Abu Dawud. Graded Sahih by sheikh albani in sahih Abu Dawud no. 1859.

[6] Sahih: The Hadith forbidding Mutah are considered Mutawaatir, meaning that they have been transmitted so many times and by so many people that there is no doubt as to their authenticity. Ali said: “The Messenger of Allah (ﷺ) had forbidden Mutah on the day of Khaybar and had forbidden the eating of the meat of domestic donkeys.” Recorded by Bukhari, Muslim and others.

[7] Sahih: The Prophet (ﷺ) said “May Allah’s curse be upon the man who made a woman lawful for her first husband and the one for whom she was made lawful.” Recorded by Ahmad. Graded Sahih by sheikh albani in sahih al-Jami’ no. 5101.

[8] Sahih: The Prophet (ﷺ) said “The most worthy conditions to be fulfilled are those which you make sexual intercourse lawful for yourselves.” Recorded by Bukhari

[9] Sahih: The Prophet (ﷺ) said “Muslims are bound to their conditions unless it is a condition that prohibits something legal or legalizes something prohibited.” Recorded by Tirmidhi. Graded Sahih by sheikh albani in al-Irwaa no. 1303.

[10] Qur’an: Allah says – “The fornicator does not marry except a [female] fornicator or polytheist, and none marries her except a fornicator or a polytheist, and that has been made unlawful to the believers.” Surah Nur: 3

[11] Qur’an: Allah says  – “(23) Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your father’s sisters, your mother’s sisters, your brother’s daughters, your sister’s daughters, your [milk] mothers who nursed you, your sisters through nursing, your wives’ mothers, and your step-daughters under your guardianship [born] of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you. And [also prohibited are] the wives of your sons who are from your [own] loins, and that you take [in marriage] two sisters simultaneously, except for what has already occurred. Indeed, Allah is ever Forgiving and Merciful. (24) And [also prohibited to you are all] married women except those your right hands possess. [This is] the decree of Allah upon you. And lawful to you are [all others]…” Surah Nisaa: 23-24

[12] Sahih: Ibn ‘Abbaas reported that the Prophet (ﷺ) said: “What is forbidden by radaa’ (suckling or breastfeeding) is the same as what is forbidden by nasab (lineage).” Recorded by Muslim no. 1444. In the version of Bukhari: “What is forbidden from birth.”

[13] Sahih: The Prophet (ﷺ) said: “The woman and her aunt must not be joined (via marriage) and the woman and maternal aunt must not be joined (via marriage).” Recorded by Bukhari no. 5109. Abu Hurairah said: “So we see her father’s maternal aunt is the same as well.” Recorded by Bukhari no. 5110.

[14] Sahih: A free man is not allowed to engage in marriage more than four wives. For the Prophet (ﷺ) said to Ghailan ath-Thaqafi when he embraced Islam and had 10 wives, he (ﷺ) said: “Keep four and leave the rest.” Recorded by Tirmidhi. Graded Sahih by sheikh albani in al-Irwaa al-Ghaleel no. 1883.

[15] Hasan: Narrated Jabir ibn Abdullah: The Prophet (ﷺ) said: “If any slave marries without the permission of his masters, he is a fornicator.” Recorded by Abu Dawud. Graded Hasan by sheikh albani in al-Irwaa no. 1933

[16] Sahih: This is found in the hadith of Barira when she was emancipated, she was given her choice regarding her husband and she chose herself (to be free from him). Narrated `Aisha: Three principles were established because of Barira: (i) When Barira was manumitted she was given the option (to remain with her slave husband or not)….” Recorded by Bukhari no. 5097

[17] Sahih: The option of terminating the marriage due to imperfection is confirmed for either of the couple. Imperfections like: craziness, leprosy, incontinence and impotency. Ibn Mas’ud said: “The impotent is to be given a chance of one year; if he cannot have sexual intercourse for the whole year, they will have to be separated.” Recorded by Ibn Abi Shaybah. Graded Sahih by sheikh albani in al-Irwaa 324/6.

[18] It means that if either of the couple embraces Islam, the contract of marriage becomes void, because it is not permissible for A Muslim to keep a polytheist  woman and Muslim women are not allowed to be wives for non-Muslim men, whether Christian, jew, hindu or Buddhist or the like. However, a Muslim man can marry or keep a Christian or a jew woman as a wife (because they are among the people of scripture), but he is not allowed to marry or keep a polytheist woman such as a hindu or Buddhist or the like as a wife.

[19] Sahih: For the Prophet (ﷺ) returned his daughter Zainab to Abi Al’as with the first marriage. Recorded by Abu Dawud. Graded Sahih by sheikh albani in al-Irwaa no. 1921.

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